Taunton v Taunton

The applicant, the son of the owner of certain real property, sought leave to appeal against orders for possession of that property made by the primary court. The proceedings for possession had been commenced by the owner's other son, acting under a power of attorney. The applicant, who had been occupying the property and caring for his father, alleged that his father had represented he could remain in occupation for his lifetime. The owner's son sought possession to sell the property to fund his father's nursing home fees.

The primary legal issues before the Court of Appeal were whether leave to appeal should be granted, particularly in light of the applicant's intention to challenge the validity of the power of attorney under which the proceedings were commenced, an issue not raised in the original proceedings. The court also considered whether the grounds of appeal addressed the correctness of the primary court's decision, and the practical effect of any potential appeal given that the possession orders had already been executed.

The Court of Appeal refused the application for leave to appeal. Their Honours noted that the grounds of appeal did not address the correctness of the decision under appeal, but rather sought to raise a new issue concerning the validity of the power of attorney, which had not been litigated in the court below. Furthermore, the possession orders had already been executed, rendering any appeal against those orders largely futile. The only outstanding matter was an order for costs.

Consequently, the Court of Appeal refused the application for leave to appeal and dismissed the summons. The motion filed on 19 May 2020 was also dismissed, and no order was made as to the costs of the proceedings in the Court of Appeal.